Whether or not Gosnell was guilty of murdering any of these babies hinged not on the question of whether or not Gosnell killed them. (He'd never denied that he'd killed them.) It hinged on the question of whether he "ensured fetal demise" before or after the baby fully emerged from the birth canal.

For the babies, of course, the difference was irrelevant. But for Gosnell, the difference was profound.

That would have left Gosnell facing only Pennsylvania's Abortion Control Act. If the prosecution could prove that a baby had been of more than 24 weeks of gestation, Gosnell could theoretically have faced at most up to a $10,000 fine and up to 7 years in prison. However, even with a fetus admittedly past 24 weeks, a successful "health of the mother" defense would have reduced the charges to two misdemeanors: performing a post-24 week abortion outside a hospital, and failing to send the fetal remains from a post-24-week abortion to a pathologist.

To borrow a phrase from the real estate business, the most three most important factors distinguishing between a woman exercising her right to choose and a doctor committing murder are location, location, and location.

Interestingly enough, the abortion lobby rolled over on the 24-week cutoff portion of the Pennsylvania Abortion Control Act, which was passed in 1982. Ten years later, however, they pulled out all the stops to challenge the Partial Birth Abortion Ban.

Late-abortion specialist LeRoy Carhart argued, on behalf of himself and anybody else who wanted to be permitted to kill partially-born babies, that the practice is just a perfectly safe and legal facet of reproductive health care. In short, as long as the scissors enter the neck while the baby's head is still lodged in the mother's pelvis, it's just a woman's right to choose an abortion.

To further muddy the waters comes the entire issue of fetal viability, which the Supreme Court slapped down as being 24 weeks of gestation. The Abortion Control Act starts with that 24 weeks but allows some wiggle room there. In fact, every law regarding abortion at or past a gestational age at which "viability" is assumed leaves that issue largely up to the abortionist. Simply disposing of the remains would make prosecution virtually impossible, because the law defers to the aborting physician's judgment. Considering what happened to Phill Kline in Kansas when he attempted to hold Planned Parenthood and George Tiller accountable for violating his state's ban on post-viability abortions, a prosecutor would be committing political suicide to even investigate, much less file charges regarding, post-viability abortions.

Dr. William Waddill

All of this highlights what has been most shocking to me about the entire Gosnell situation: that Seth Williams had the courage to go after an abortionist for killing babies at all. I believe that were the surrounding circumstances not so egregious -- the filth, the cat feces, the dead mothers, the jars of fetal feet -- Gosnell's legal troubles would have been limited to the Federal drug charges. Without the squalor and depraved indifference to the women's lives, charging Gosnell for murder in the deaths of abortion survivors would have been far too risky. No prosecutor in his right mind would relish spending a lot of time and money on a case that might end up like the Baby W case in California, in which abortionist William Waddill strangled a 32-week abortion survivor in a hospital nursery in front of several horrified nurses and a neonatologist, but was able to walk because of two successive hung juries quibbling over the legal definition of causing the baby's "death."

All of this is just to point out what the Gosnell case reveals about the bizarre and often contradictory legal status of a viable baby just prior to or just after an abortion. It's not just a matter of life and death to the babies in question. It was also quite literally a matter of life and death to Kermit Gosnell, who faced the possibility of being executed for being a bit slow with the scissors.

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